QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|PREMIER MONITORING SERVICES LTD||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR M BRYANT-HERON (instructed by Premier Monitoring Services) appeared on behalf of the DEFENDANT
Crown Copyright ©
"If you do not stay at the place you should be at during your curfew you may be brought back to Court. This means that the Court may then:
• Punish you for that failure as well as making you finish this order, or.
• Pass a different sentence for the original offences."
The form, however, did conclude with these words:
"I am bound to comply with the curfew order and confirm that the Court has explained to me the conditions of the order and what will happen if I do not comply with the order. I understand that monitoring officers will visit me after sentencing during curfew periods."
"On 25th January 2002 the offender was sentenced by the Camberwell Green Youth Court to a Curfew Order. The terms of the Order were that the offender was to remain indoors at 6 Addison Drive, Eltham Road, London, SE12 between the hours of 10pm to 7am daily from 25th January 2002 to 19th April 2002. The order was to be electronically monitored.
Premier Monitoring Services Ltd was appointed by the Court as Responsible Officer for the duration of the Order."
It follows, one might add as a matter of detail, that the written order to which I have referred does not record that Premier Monitoring Services had been appointed by the court as the responsible officer for the duration of the order, but it is plain according to the provisions of section 36B that the court was, under subsection (5), required to include a provision making a person responsible for the monitoring and a person who is made so responsible shall be of a description specified in an order made by the Secretary of State. Thus it is perfectly obvious and beyond argument that on 25 January 2002 an order was made under section 36B, as I have described.
"No evidence had been called that the conditions of the Order made included any explanation by the Court on the 25th of January that any 'tag' should be worn continuously (and not removed) during the currency of the Order."
"ii) That the Appellant had been made the subject of a Curfew Order on the 25th of January .... The second page of the Curfew Order reads 'I am bound to comply with the curfew order .... ',"
namely the words I have already read. He also found that one William Reeves, whose statement was before him, had occasion to visit the "curfewee" -- as he is called -- in order to induct him into the electronic monitoring system as required by the court order. The Deputy District Judge found that, notwithstanding the written order served on the appellant did not refer to the Act, it was a curfew order with a condition of electronic monitoring. He went on to find also that the regime imposed by the order is not simply a matter of physical surveillance, nor a matter of unannounced visits by the monitoring authority, but that it is implicit in the order that the tag must be worn at all times throughout the period of the order in order to ensure compliance with the court order. He concluded that in damaging the tag the appellant had sought to undermine the regime and system of ensuring compliance with a court order. He concluded that it was implicit and inherent in the order that the appellant permit the tag to be attached for the period of the order and that the tag is not to be damaged or destroyed or removed. As a result he imposed a fine of £50 for the breach.
"Before making a curfew order, the court shall explain to the offender in ordinary language --
(a) the effect of the order (including any additional requirements proposed to be included in the order in accordance with section 38 below (electronic monitoring));
(b) the consequences that may follow (under Part II of Schedule 3 to this Act) if he fails to comply with any of the requirements of the order; and
(c) that the court has power (under Parts III and IV of that Schedule) to review the order on the application either of the offender or of the responsible officer."
Obviously, for "section 38", that having been repealed, must be read, "section 36B". The evidence which was before the court below was in the terms of the signed certification that "the court has explained to me the conditions of the order and what will happen if I do not comply with the order." In my judgment there is no call for any doubt to arise in relation to that, it being, as counsel agreed, the criminal standard of proof which applied. As signed, the conditions of the order must refer sensibly, not to the conditions of the particular written order which has then been signed, but to the conditions of the order which have been explained to him by the court. In the absence of any issue being joined with the terms of such a written declaration, in my judgment there can be no question that it was open to the Deputy District Judge to be sure that the court had followed the provisions of section 37, and in particular 37(10), in making known to the appellant the effect of the order, including the electronic tagging and also the consequences which may follow if he failed to comply with any of the requirements of the order made under section 36B. In my judgment nothing turns on that point.
"The court by which a curfew order is made shall give a copy of the order to the offender and to the responsible officer."
On the evidence which was before the court, section 37(11) had not been complied with because the written order which was given to the appellant did not reflect the full terms of the order which had actually been made under section 36B. I have no doubt that that was because the court was using the remaining pro forma forms of order which had been used previously under the earlier provisions. Mr Hardie has very helpfully provided a specimen which shows what the Greater London Magistrates Courts Authority are now using by way of written curfew order, and it is plain a warning is being given in respect of the removal of the tag and the consequences which may follow. But the argument forcefully presented by Mr Hardie did not, in my judgment, at any time deal with the substance of the matter, namely that what is required by these provisions is that the individual concerned must be aware of what the order contains by way of its terms and he should be given a warning as to the consequences of breaching it. The principle that an individual should be aware of the terms of an order, and before he can be penalised for having breached it the court must be sure that he knew of the terms, is long established and the cases to which I have been referred by Mr Hardie underline the importance of that in the analogous sphere of the law in connection with contempt. He has kindly drawn to my attention the well-known case of re Bramblevale Ltd  3 All ER 1062 and the more recent R v City of London Magistrates' Court ex parte Green  3 All ER 551. Reference was also briefly made to the case of Churchman and Others v Joint Shop Stewards' Committee of the Workers of the Port of London  1 WLR 1094. All those cases make it plain that the terms must be known to the person made subject to the order and also that the individual must have a proper notice of the terms, and that he will be at risk of penal consequences flowing from a breach of the terms. As I have indicated, there was ample material before this Deputy District Judge for him to be sure that the terms of the order spoke for themselves, had been explained and were plainly known to the appellant. There was a declaration in terms which was sufficient for him to conclude that the effect of and consequences of those terms had been explained in accordance with the requirement of the Act. Against that was only the absence from the written order of mention of the full terms of the order imposed by the court.
"Whether, as a matter of law and fact, the Deputy District Judge was entitled to find that there was a breach of a Curfew Order where the curfew monitoring tag was removed in circumstances where the original order served upon the curfewee in Court [under s 37 of the Powers of Criminal Courts (Sentencing) Act 2000] was silent as to whether a tag must be worn during the operation of the Order?"